Com. v. Kushmanick, A., IV ( 2016 )

J-S22021-16
NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA IN THE SUPERIOR COURT OF
PENNSYLVANIA
Appellee
v.
ANTHONY J. KUSHMANICK, IV
Appellant No. 1062 MDA 2015
Appeal from the Judgment of Sentence December 17, 2014
In the Court of Common Pleas of Lebanon County
Criminal Division at No(s): CP-38-CR-0000456-2014
BEFORE: MUNDY, J., DUBOW, J., and STRASSBURGER, J.*
DISSENTING STATEMENT BY MUNDY, J.: FILED JULY 20, 2016
I respectfully dissent. The crux of Appellant’s sufficiency argument is
that the photographs of S.C. were consensually taken, and he did not
disseminate them. Majority Memorandum at 4; Appellant’s Brief at 11.
Instead, the Majority decides a different issue, i.e., that the “the conduct at
issue herein is not the type which the legislature intended to punish.”
Majority Memorandum at 6.
The Majority does not conclude the Commonwealth’s evidence is
insufficient for a failure to satisfy any of the elements of sexual abuse of
children. Likewise, the Majority does not dispute that neither lack of
consent, nor dissemination is an element under Section 6312, which
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*
Retired Senior Judge assigned to the Superior Court.
J-S22021-16
resolves Appellant’s sufficiency argument.1 Rather, the Majority deems the
Commonwealth’s case legally insufficient because of the maxim cessante
ratione legis cessat et ipsa lex. Majority Memorandum at 6. This maxim has
never been applied to void an otherwise legally sufficient criminal conviction.
While I am sympathetic to Appellant’s argument, I cannot overlook
that Appellant does not deny the photographs were taken, or that he
possessed them on his cell phone. See generally Appellant’s Brief at 11.
The trial court reached this same conclusion.
[The trial c]ourt understands and does not
depreciate how child pornography can victimize
young children who are horrifyingly sexualized to
gratify the perverted desires of older pedophiles.
However, we cannot in good conscience equate an
[sic] 19-year-old who engages in consensual
photography with his almost 17-year-old girlfriend
with the perverted adults who prey upon, sexualize
and photograph children so that the images can be
disseminated to pedophiles who troll the internet.
Unfortunately, [Appellant]’s conduct in taking and
keeping the consensual photographs of his underage
girlfriend fits the technical legal definition of creating
child pornography. Also, unfortunately, all of the
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1
The Majority appears to equate “prohibited sexual act” in Section 6312(d)
with a criminal act. See generally Majority Memorandum at 6. However,
Section 6312(g) defines the term “prohibited sexual act” as “[s]exual
intercourse as defined in section 3101 (relating to definitions), masturbation,
sadism, masochism, bestiality, fellatio, cunnilingus, lewd exhibition of the
genitals or nudity if such nudity is depicted for the purpose of sexual
stimulation or gratification of any person who might view such depiction.”
18 Pa.C.S.A. § 6312(g). The statute therefore does not depend on the
legality or illegality of the underlying act, rather it depends on depicting a
child under the age of 18 engaging in any of the listed “prohibited sexual
acts.”
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draconian consequences that were intended to deal
with perverted purveyors of child pornography will
apply to a naïve young man who made the mistake
of photographing his slightly younger girlfriend.
Trial Court Opinion, 5/18/15, at 4.
Nevertheless, having no legal alternative, the trial court concluded as
follows.
In this case, [Appellant] clearly took the
photographs of his almost seventeen-year-old
girlfriend that depicted her naked and in sexual
situations. At the time, [Appellant] knew his
girlfriend’s age. Even though the girlfriend obviously
consented to the photographic session, consent is
not a defense to a violation of [Section] 6312.
…
[Appellant]’s argument has equitable and
common sense appeal. Unfortunately, his
arguments are not legally cognizable. Section 6312
does not distinguish between consensual
photographs taken by two adventurous,
experimenting teens and photographs created by
sexual predators for the pedophilic gratification of
themselves or others. While certainly ironic, the fact
that [Appellant] and S.C. were legally permitted to
engage in sexual activity is not a defense to
[Section] 6312[.]
Id. at 13.
Upon careful review, I am constrained to agree with the trial court’s
conclusion that the evidence was sufficient to convict Appellant of both
counts of sexual abuse of children. The trial court appropriately recognized
that Section 6312 is the law of this Commonwealth, and faithfully applied
the same to this case. As noted above, Appellant acknowledges that S.C.
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was under 18 years of age, “the photographs were of a sexual nature[,]”
and that he took said photographs. Appellant’s Brief at 11. It is not the role
of the judiciary to change the law. Rather, any changes to Section 6312
must come from the legislature.
Based on the foregoing, I conclude that Appellant is not entitled to
relief, and the Majority’s reasoning for concluding to the contrary is
unsound.2 Accordingly, I would affirm the trial court’s December 17, 2014
judgment of sentence. I respectfully dissent.
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2
I have reviewed Appellant’s second issue pertaining to the weight of the
evidence, and likewise conclude it lacks merit.
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